Food Court Follies—A WLF Legal Pulse Series

Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity.

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As the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes. One popular cause is the reduction of drug prices. Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy of consideration, especially given the increasing budgetary percentage that government and personal spending healthcare now occupies. One drug-price-reduction idea advanced toward the end of last year, however, should be vigorously opposed. Continue reading “Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons”→

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The U.S. Supreme Court has repeatedly held that federal courts are under a “virtually unflagging” obligation to hear and decide federal claims over which they possess jurisdiction. Yet, the U.S. Court of Appeals for the Second Circuit has repeatedly refused to decide a First Amendment challenge to a New York statute that restricts merchants’ ability to inform their customers of credit-card surcharges.

Guest Commentary

By Alexandra Laks and Lucía Roibal, Associates with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on December 4, 2017 in the firm’s Class Dismissed blog.

On October 20, 2017, a unanimous Ninth Circuit panel in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), resolved a circuit-wide split on injunctive standing requirements in the misbranding context. The panel addressed whether a plaintiff allegedly deceived by false advertising has Article III standing to enjoin a false statement despite knowing the statement’s “true” meaning. The panel answered in the affirmative, reversing the district court’s decision and reviving plaintiff’s “flushable” wipes false advertising claims. The panel also held that plaintiff had adequately alleged that defendants’ wipes advertisements were false and that she had suffered an economic injury as a result. Continue reading “Ninth Circuit Finds Lower Court Erred in Flushing “Flushable” Wipes False Advertising Claims”→

When prohibiting or reducing “harmful” economic conduct proves either politically unpalatable or otherwise unachievable, governmental regulators often target speech about the conduct as a convenient alternative. Rather than ban the sale of tobacco or sugary drinks, for instance, federal, state, and local governments have imposed restrictions on advertising and other promotional speech. Unable to generate support for a second Prohibition, temperance proponents have attempted to chill alcohol consumption through speech limits, such as proscribing disclosure of alcohol-by-volume percentage on beer labels and even censoring ads for happy hours. In 2016, the so-called sharing economy became the government’s latest target regulating conduct by proxy. Thankfully, online short-term rental platforms like Airbnb are fighting back with First Amendment challenges. Continue reading “A Sharing-Economy Giant Asserts its First Amendment Rights to Oppose Government Censorship”→

In the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of “disfavored” food and beverage products. The agency’s brazen action establishes a deeply troubling precedent in government’s efforts to usurp our freedom to choose what we eat and drink. Over the last several years, Washington Legal Foundation has closely tracked and strategically opposed actions such as USDA’s ban through our “Eating Away Our Freedoms” project. We launched that project five years ago this month on October 20, 2011.